Ottawa – Tomorrow, the Supreme Court of Canada will hear arguments in R. v. Smith, which concerns the scope of access to medical marijuana products under the Marihuana Medical Access Regulations (“MMAR”). Under the MMAR, patients are only legally permitted to access “dried marihuana” for treatment purposes. This means that ingestion is limited to smoking or vapourizing the marijuana – oral ingestion through capsules or food is prohibited. Among the issues being considered by the Court is whether this restriction is constitutional.

Owen Smith worked for the Cannabis Buyers Club of Canada, which produces, among other things, edible marijuana products. He was arrested and charged for producing baked goods containing marijuana, in violation of the Controlled Drugs and Substances Act. At trial, Mr. Smith challenged the constitutionality of the MMAR’s restriction to dried marijuana. The BC Supreme Court found that the restriction violated s. 7 Charter rights of medical marijuana patients, and Mr. Smith was acquitted of the charges against him. The BC Court of Appeal upheld the finding of unconstitutionality. The Supreme Court of Canada is now hearing the government’s appeal.

The BCCLA argues that the criminalization of modes of ingestion of medical marijuana infringes the liberty interest protected by s. 7 of the Charter. Medical autonomy should be conceived broadly to include not only amelioration of injury or illness, but also non-trivial enhancement, maintenance and preservation of health or well-being. The choice of individuals to use what they experience as the most efficacious mode of ingesting a medication is a non-trivial choice, and restricting that choice infringes the right to liberty.